Date of Filing – 05.12.2016
Date of Hearing – 11.01.2017
PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Parties to impeach the Order no.14 dated 01.09.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II (for short, Ld. District Forum) in Consumer Complaint no. 132/2016 whereby the consumer complaint initiated by the Respondents under Section 12 of the Act was allowed with certain directions upon the OPs/Appellants like – (a) to refund Rs.1,60,000/- after deduction of 10% thereof; (b) to pay Rs.25,000/- as compensation and (c) Rs.5,000/- each as litigation cost.
The Respondents herein being Complainants lodged the complaint with the assertion that with a view to conduct ‘European Spelendour 2015’ the OPs came to contact with them through E-mail and OP no.3 influenced them by representing themselves a responsible tour organiser, for which the Complainants with great expectation and hope intended to join in the said tour programme from 09.11.2015 to 17.11.2015. As per requirement of the OPs, Complainants paid in total Rs.1,60,000/- as advance/booking money for the said tour. Thereafter, the Complainants vide e-mail despatch all the documents along with original passport to OP no.2 in their address at Mumbai. Thereafter, Complainants came to know that their Visa has been rejected by the Office of the French Consulate in Mumbai. The Complainants alleged that OPs never asked them to make their presence in the embassy/High Commissioner Office. On 19.01.2016, the Complainants wrote one letter to the Branch Manager of Make My Trip (OP no.5) at Kolkata where the Complainants narrated the entire facts and demanded refund of the entire advanced money paid by them to the OPs for their bookings but the OPs turned a deaf ear. Hence, the Respondents approached the Ld. District Forum with prayer for refund of entire advanced money, compensation of Rs.5,00,000/- each and litigation cost etc.
The Appellants herein being OPs by filing a joint written version have stated that they cannot be held responsible for rejection of Visa in any form or any loss arising out of the same. The OPs stated that the Visa was rejected from French Consulate General, Mumbai the reason provided was ‘purpose of stay was not reliable’ and ‘intention to leave territory could not be ascertained’ which was totally out of their hand. Thereafter, Visa was rejected from the Consulate General at Kolkata and as such no responsibility can be given to them. The OPs have stated that the Complainants have accepted the terms and conditions by accepting User Agreement at the time of making the payment/booking of the tour package and in view of the terms and conditions enumerated in the Agreement, they are not liable for any claim whatsoever as alleged in the complaint and the complaint should be dismissed with costs.
After evaluation of the materials on record, the Ld. District Forum by the impugned Order allowed the consumer complaint with certain directions upon the Appellants to the extent as indicated above, which prompted the OPs to approach this Commission with the present appeal.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record, it would reveal that the Respondents are holding responsible posts in two nationalised banks. The Appellants are also responsible officers of ‘Make My Trip’. It remains undisputed that the OPs conducted a tour named ‘European Splendour’ from 09.11.2015 to 17.11.2015 and being allured by the OPs, particularly, the Appellant no.3, the Respondents paid Rs.1,60,000/- only as advanced/booking money for the said tour on 01.10.2015 and 04.10.2015 respectively. It is also not in dispute that under instruction of the Appellants through E-mail, the Respondents sent all the documents which were required for the purpose of Visa including the original passport and in the process, the Appellants/tour organiser never asked the Respondents to make their presence in French Consulate General in Mumbai. It is known to everybody that in order to obtain Schenzen Visa, biometrics or finger print of the visitor is a must. Both the Respondents are residents of Kolkata and as such we do not find any reason why at the first instance, the Respondents were not asked to submit the application of Visa in the French Consulate Office at Kolkata. In any case, the Visa application has been rejected by the French Consulate General in Mumbai on the ground that ‘purpose of stay was not reliable’ and ‘information submitted regarding the justification for the purpose and condition of the intended stay was not reliable.
Needless to say, the Appellants were the tour organiser and they had collected all the details about the Respondents including the original passport for obtaining Visa. Therefore, when the Appellants have failed to obtain Visa for the Respondents being service provider, they were certainly deficient in rendering service to its consumer.
Ld. Advocate appearing for the Appellants has submitted that the Appellants had tried to obtain the Visa of the Respondents to which they had no control over the same because the Visa Issuing Department is French Consulate General at Mumbai. Ld. Advocate for the Appellants further raised a point of territorial jurisdiction on the ground that all the agreement, communication and mail was initiated by the Respondents to the Appellants and vice versa from the office of Mumbai and Gurgaon and as such the Ld. District Forum had no jurisdiction to entertain the same.
Ld. Advocate for the Respondents, on the other hand, has contended that the Appellants had failed to collect the Visa on behalf of the Respondents for which the Appellants had no reason to forfeit the entire amount of Rs.1,60,000/- as advanced booking money. He has further submitted that due to failure on the part of the Appellants, the Respondents had suffered a lot which caused serious mental harassment and irreparable loss and as such the impugned order should not be interfered with.
We have considered the rival contention of the parties. Section 11(2) of the Act deals with the territorial jurisdiction of District Forum which reproduces below –
“(2) A complaint shall be instituted in District Forum within the limits of whose jurisdiction –
- the opposite party or each of the opposite parties, where there are more than one, at the time of institution of complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
- any of the opposite parties, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business or has a branch office, or personally works for gain, provided that in such cases either the permission of the District Forum is given or the opposite parties who do not resides, or carry on business or have a branch office, or personally work for gain, as the case may be acquiesce in such institution; or
- the cause of action, wholly or in part arises.
The factual matrix makes it abundantly clear that Appellants business is spread all over the world and they are offering their services throughout the country including Kolkata. The Appellants/OPs attract tourists via internet and facilitate and except payment through payment mode meaning thereby the internet online transactions. The Appellants received payment from the Respondents through online and the Respondents paid the amount at Kolkata which accepted by the Appellants. The Appellants have also a branch office at 11/1, Sarat Bose Lane, Kolkata -700020 within the jurisdiction of the Ld. District Forum. Therefore, the Ld. District Forum has rightly observed that the part of the cause of action arose in Kolkata within the jurisdiction of the Fora and as such it has got territorial jurisdiction to entertain the complaint. We fully endorsed the view of the Ld. District Forum that it had territorial jurisdiction to take cognizance of the matter.
The user agreement does not show any specific condition relating to refund of money in case of rejection of visa. In the user agreement, it has been mentioned that a non-refundable deposit of Rs.80,000/- to initiate a booking if travel date is more than 30 days from the date of booking. The cancellation policy has been mentioned that in case of cancellation of journey on 45 days or more, booking fees of Rs.80,000/- would be forfeited. This booking condition or cancellation policy will not be applicable in this case because the Appellants themselves were deficient in rendering services. The Appellants took the responsibility of the Respondents for obtaining visa from the office of French Consulate General at Mumbai but failed to do so. The Appellants never asked the Respondents to move Mumbai for the purpose of the visa and further did not ask the Respondents, who are residents at Kolkata to apply in the office of French Consulate General at Kolkata prior to rejection of visa by Mumbai Office. The Appellants collected all the documents including original passport to obtain visa but miserable failed to achieve the same. In such a situation, in all fairness, the Appellants should have agreed the proposal of the Respondents for refunding the advanced money at a good gesture. The Ld. District Forum has rightly observed – “non-refund of advanced money, we think is a gesture of unfair trade practice on the part of the OPs. The Complainants could not enjoy the tour. On the contrary, they were penalised for non-refund of advance/booking money”. In that view of the matter, the Ld. District Forum directed the OPs/Appellants to refund the advance/booking money of Rs.1,60,000/- after deduction of 10% thereof as non-standard basis. The said order is based on proper reasoning and as such it should not be interfered with.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, we feel that the appeal is totally devoid of any merit. In other words, the OPs had no occasion to prefer this appeal without complying with the order of the Ld. District Forum and as such the appeal deserves dismissal with costs which we quantify at Rs.10,000/-.
Resultantly, the appeal is dismissed on contest with costs of Rs.10,000/- each to be paid by the Appellants in favour of the Respondents i.e. the Complainants of the case.
The impugned order is hereby affirmed.
The Appellants/OPs are directed to make payment all the amount awarded by the Ld. District Forum as well as the costs imposed by this Commission within 30 days from date, otherwise the amount shall carry an interest @ 9% p.a. from this date till its total recovery.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II for information.
